The lies occurred when Cpl. Martin Stoner and Staff-Sgt. Peter Lea appeared in court to explain errors, false statements and omissions in affidavits used to get authorization from another judge for wiretaps against the accused.
As a result, B.C. Supreme Court Justice Peter Leask excluded the wiretap evidence, prompting the Crown to say it had no further evidence to call.
Leask then acquitted former boxer Robert Della Penna, 39, and three co-accused, Casey David Wells, Robert Muoio and James Mickelwright.
“I acknowledge the charges are serious ones and the allegations against Della Penna are very serious,” the judge said, pointing out that Della Penna was accused of heading an international drug trafficking ring that exported B.C. marijuana and ecstasy to the U.S. and imported shipments of cocaine.
The judge said Wells was accused of managing sophisticated marijuana-growing operations for Della Penna, Muoio was Della Penna’s assistant and Mickelwright was the intended recipient of shipments of eight, 10 and 20 kilograms of cocaine that were intercepted by police. The cocaine was allegedly to be distributed in Ontario.
Della Penna, 39, was charged after he was arrested in 2004 during a reverse-sting operation in Richmond with an undercover officer posing as a Colombia cocaine dealer.
Della Penna had delivered $575,920 Cdn cash to buy 25 kilograms of cocaine, with the second 25-kg. shipment to be delivered within 24 hours.
Police had also secretly watched the stocky Della Penna and Wells deliver buckets of Kentucky Fried Chicken and Safeway deli platters to a home in Mission, where 49 hungry people were harvesting marijuana.
The harvesters were found in the home during a police bust, which resulted in the seizure of 1,448 live plants and another 1,427 dried plants.
In an oral ruling this week to exclude the wiretap evidence, Leask found Stoner violated Della Penna’s constitutional rights by misleading the judge who originally authorized police to wiretap phone calls.
And both officers committed serious misconduct by lying in court during their testimony as they tried to explain what the judge called false statements in the wiretap affidavits.
“I have found a series of serious breaches of the Charter involved in the unconstitutional interception of communications in this case,” Leask said.
The judge said police cannot take shortcuts and violate a person’s Charter rights during an investigation.
“In my view, permitting police to ignore the requirements for full, frank and fair disclosure, and allowing the unconstitutionally seized evidence to be introduced in court….would strike at the heart of our system of judicial supervision of the state’s intrusion into the lives of its citizens,” the judge said.
RCMP media relations Sgt. Rob Vermeulen said Wednesday that Mounties are concerned about the judge’s findings about the officers lying in court.
“Any time you hear something like that, it’s obviously concerning.
“We’re working closely with Crown and reviewing the decision in its entirety,” Vermeulen said. “We’re looking to appeal.”
But defence lawyer Neil Cobb, who represented Della Penna at trial with co-counsel Elizabeth Lewis, said: “In light of the trenchant findings of the judge, it’s going to be a very difficult to appeal this decision.”
Della Penna testified at the 2003 trial of two Hells Angels that he had been a drug trafficker since 1995.
He was brought to the attention of Canadian police by the U.S. Drug Enforcement Administration (DEA), which alleged Della Penna was part of an organization involved in cross-border smuggling of B.C. marijuana and ecstasy in exchange for cocaine, which was smuggled into Canada.
In his ruling, Leask found that Stoner failed to disclose all material facts — specifically that police had informants in Montana and Calgary — to the judge who initially authorized a wiretap operation against Della Penna, allowing police to secretly listen to phone calls.
The judge said Stoner stated in two affidavits that “there are no informants” and then in another affidavit said an Alberta informant was providing information about Della Penna’s drug trafficking activities with a Calgary man.
The judge said police surveillance observed Della Penna flying to Calgary on Dec. 9, 2003, where four kilograms of cocaine were seized.
The judge said police also met with U.S. customs officers and Drug Enforcement Administration agents in Montana in 2003, where authorities disclosed they had received information from informants in Montana.
In his court testimony, Stoner said he forgot about the Montana informants so didn’t mention it in his affidavits. “I did not believe Cpl. Stoner’s evidence on this subject,” the judge said. “I find as a fact that he was lying to this court.”
The judge, detailing the history of the police handling of the Alberta informant, said Stoner must have known about the Alberta informant by the fall of 2003 but swore two false affidavits failing to disclose the material fact.
Lea testified that he first met with U.S. authorities in October 2003 and discussed the Montana informants, who said Della Penna was transporting cocaine through Montana.
Lea assigned Stoner on Oct. 31, 2003 to liaise with U.S. agents about their “intel” on Della Penna. Lea testified he had a conversation with an Alberta officer about the Alberta informant, but admitted he had no notes of the conversation. “I do not believe Staff-Sgt. Lea on this point and I find as a fact that he was lying to the court,” Leask said.
“A frustrating aspect of this informant evidence is that neither Staff-Sgt. Lea or Cpl. Stoner seem to grasp the true significance of the issue. Full, frank and fair disclosure means all the material facts must be disclosed to the authorizing judge,” the judge said.
“It’s not for the investigators to pick and choose among the relevant facts and tell the authorizing judge only about the best investigative strategy.”
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